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Barone v. City of Springfield

United States District Court, D. Oregon, Eugene Division

April 12, 2017

THELMA BARONE, Plaintiff,
v.
CITY OF SPRINGFIELD, a municipal corporation; TIM DONEY, individually and as Chief of Police of the Springfield Police Department; TOM RAPPE, individually and as a Lieutenant of the Springfield Police Department; and GRETA UTECHT, individually and as Director of Human Resources for the City of Springfield, Defendants.

          OPINION AND ORDER

          ANN AIKEN, UNITED STATES DISTRICT JUDGE

         Plaintiff, Thelma Barone, filed suit against the City of Springfield (the City) and several employees of the City and the Springfield Police Department (the Department) on August 17, 2015. Plaintiff alleges that defendants violated her First Amendment rights under 42 U.S.C. § 1983 by: (1) retaliating against her for speaking out about complaints of police racial profiling; and (2) requiring her to relinquish her right of free speech to maintain her employment, constituting an unconstitutional prior restraint. Doc. 1; Doc. 56. On May 25, 2016, this Court denied plaintiffs Motion for Partial Summary Judgment on her second claim for relief. Doc. 42. On October 13, defendants filed the instant Motion for Summary Judgment on both claims. Defs.' Mot. Summ. J. at 1. For the following reasons, defendants' motion is granted and plaintiffs second Motion for Partial Summary Judgment (doc. 50) is denied.

         BACKGROUND

         On March 24, 2003, the Department hired plaintiff as a Community Service Officer II. Plaintiff was assigned as a victim advocate and multicultural liaison. Beginning in the spring of 2013, plaintiff began receiving calls from members of the Latino community complaining about racial profiling by members of the Department. In response, plaintiff informed Department leadership of her concerns regarding police officer interactions with the Latino community. The Department maintains it investigated at least three formal complaints involving race or ethnicity during 2013 and 2014. In contrast, plaintiff alleges that the Department leadership denied any racial profiling problems existed and dismissed such complaints throughout 2013 and 2014.

         In 2014, the Department investigated two incidents of untrustworthiness involving plaintiff. The first incident occurred on June 28, 2014, when plaintiff led a school tour to visit five different Department units. Barone Decl. ¶ 12; Doney Decl. ¶ 8, Ex. 4, at 1. During the tour, some students took photos of restricted areas. Plaintiff claims that either she or her fellow tour guide asked permission to photograph each unit and that each unit granted permission. Barone Decl. ¶ 13. Some unit employees do not remember whether they were asked or granted permission. Rappe Dep. 32:17-33:18.

         The second incident occurred on September 2, 2014, and involved plaintiffs report of a potential domestic violence crime. Plaintiff was the only member of the Department with information about the crime. She left a message with dispatchers asking Sgt. Boring to call her back. Plaintiff recalled that she had described the allegations of violence in the message. Barone Decl. ¶¶ 15-16. Sgt. Boring and the dispatchers, by contrast, asserted that plaintiff merely requested a call back and did not explain that she was calling about a potential crime. Doney Decl. Ex. 3, at 4-6. When confronted with a recording of the call showing plaintiff had merely requested a call back without mentioning the serious nature of the message, plaintiff refused to admit her mistake, instead asking whether the recording had been altered. Doney Decl. Ex. 3, at 5-6. Sgt. Rappe investigated both incidents, interviewed plaintiff, and in January 2015, prepared a written report of his findings.

         On February 5, 2015, plaintiff spoke at a City Club of Springfield event. Plaintiff alleges that she was asked whether she knew of complaints of racial profiling, and she responded that she had heard of such complaints.

         On February 12, 2015, Chief Doney informed plaintiff that the Department was placing her on administrative leave pursuant to the 2014 investigation. He provided plaintiff with a memorandum entitled "Allegation of Misconduct Investigation" and formally notified her that she was subject to an investigation for untruthfulness. During the investigation, plaintiff was suspended from duty with pay.

         On March 4, 2015, Chief Doney prepared a memorandum informing plaintiff of the initial results of the investigation and the tentative finding that plaintiff had violated several sections of the Department's code of conduct. Plaintiffs alleged violations included: (1) unbecoming conduct; (2) unsatisfactory performance; and (3) knowingly making an inaccurate, false, or improper report. Chief Doney informed plaintiff that the allegations were sufficient to justify termination for cause.

         During the following months, the Department continued the investigation. On July 15, 2015, Chief Doney informed plaintiff that she would be suspended for four weeks without pay and required her to sign a Last Chance Agreement (Agreement). Two weeks of the suspension were to be completed at the end of July 2015, and the other two weeks would be deferred to an unspecified date within the following six months. Plaintiff alleges this disciplinary action was retaliation for speaking about racial profiling on February 5, 2015 at the City of Springfield event.

         On August 3, 2015, plaintiff returned to work as a Community Safety Officer. Plaintiff contends that she was prohibited from engaging in any multicultural liaison activities in her new assignment and was essentially demoted. Defendants maintain that even though her assignment changed, plaintiff was neither demoted in her rank or pay, nor did her benefits change.

         On the day of her return, Chief Doney met with plaintiff and her union representative, Erik Pardee, and provided both with a copy of the Agreement. Chief Doney advised plaintiff and Pardee to review the Agreement with their attorneys. Plaintiff alleges that Chief Doney stated that if she failed to sign the Agreement or failed to comply with its terms, the Department would terminate her.

         On August 10, 2015, plaintiff informed Chief Doney, in an e-mail, that she would not sign the Agreement because she did not agree with the investigation results or with the subsequent discipline. Plaintiff also expressed concern that the Agreement's provisions would prohibit her from raising complaints regarding racial profiling and discrimination. Plaintiff explained, "I am afraid that by signing this agreement I will agree not to speak up if people bring complaints to us regarding police profiling, discrimination, etc." Barone Decl. Exs. E & G.

         In response, on August 12, 2015, Chief Doney provided plaintiff and Pardee with a new version of the Agreement with changes made to address plaintiffs concerns. Specifically, Paragraph 5(g) of the Agreement stated: "Consistent with [the Department] General Order 26.1.1.XIX, Employee will not speak or write anything of a disparaging or negative manner related to the Department/Organization/City of Springfield or its Employees. Employee is not prohibited from bringing forward complaints she reasonably believes involve discrimination or profiling by the Department." Doney Decl. Exs. 9 & 11; Barone Decl. Ex. A, at 2. General Order 26.1.1.XIX provides that Department members "shall not publicly criticize or ridicule the Department, its policies, or other members . . . [and] shall conscientiously avoid the release of any confidential information or information that compromises any investigation." Doney Decl. Ex. 10, at 6.

         Chief Doney asked plaintiff if she was prepared to sign the Agreement, and plaintiff stated that she needed more time to think about it. After speaking with Pardee, plaintiff told Chief Doney that she would not sign the Agreement. Chief Doney told plaintiff that she would be terminated if she did not sign. Doney Decl. ¶¶ 5-6. Plaintiff confirmed that ...


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